In a child custody case, there are several areas where you and your co-parent may end up disagreeing significantly. This shouldn’t come as much of a surprise to you given that you wouldn’t be involved in a child custody case if you and your co-parent agreed on every issue under the sun about your child. However, it is true that while you may disagree on certain subjects that require that a family case be filed that does not mean that your case is headed for a courtroom. That is probably one of the most significant misnomers that people in your shoes have about child custody cases. 

Many people in your position will assume that if they become involved in a child custody case it means that they will have to tell their story to a judge and have that judge issue a decision on their case. Almost like if you file for divorce or a child custody case it necessarily means that you must immediately go to court and have the judge decide on your behalf. This is not true. It is the exception rather than the norm for you to have to go through a court to complete your case. 

Rather, most people like you who go through a family law case of any kind will end up settling their case with their co-parent rather than have the case go through the courtroom. In most scenarios, this ends up happening in one of two ways. The first is that you and your co-parent could end up settling your case informally between one another. You may not even need an attorney to go about things this way. You and your co-parent would work through whatever issues you have and then make an informal settlement agreement- be it oral or in writing. From there you could use your informal settlement agreement and use it to draft final orders that the two of you would operate under in the future. 

Next, you could put yourself in a situation where you and your co-parent can settle your case through informal settlement negotiations. For most people, this means hiring attorneys and attending mediation. Mediation is a setup where you and your co-parent mutually agree to name an independent, third-party lawyer to help the two of you settle your case. Rather than have the judge intercede and make decisions for you the mediator would intercede and help the two of you work on the issues together. This works well because the mediator can help you understand what a judge is likely to say on any given issue so that you can anticipate what could happen if you do not settle your case and instead go to trial.

Negotiating hard and being hardheaded don’t have to be the same thing

I have worked with clients who have been great, tough negotiators. These folks would not back down from a fight and would stick to their principles through thick and thin. Even when their spouse or co-parent would kick and screen on any number of issues these people would not back down and did what they thought was right. I admire folks like this because it is very hard to stand up for what you believe especially when your time, money, and children are on the line. Doing what you think is best for your children is an incredibly admirable quality to possess, especially when that quality can cause you to face massive resistance from your co-parent or spouse. 

Here is where being a tough, hard-nosed negotiator can take a hard left turn and become something where you are on the verge of acting hardheaded. There are certain parts of a case where everyone reaches a point where they come face to face with an issue that cannot be negotiated on. This is your “hill to die on”, so to speak. Your issue is that you cannot have it any other way than how you want it. You believe so strongly in this issue that nothing your co-parent could say, do or offer makes a bit of difference. Rather, what you try to figure out is how to accomplish that goal. Maybe you need to give up some ground on another issue? 

At a certain point, you will come to understand that not being able to bend on a particular subject means that you are headed towards a dead-end during negotiations. I am a huge fan of negotiations, mediation, and everything that can help you to avoid going to court. However, once you and your co-parent go around the merry-go-round of negotiations enough times it becomes clear that you cannot negotiate your way out of every subject in your case. This means that if you all reach an issue that you cannot negotiate your way through the only way out of the case is to present that issue to a judge. 

If you understand this, have done what you can to avoid it, and feel comfortable moving forward then there isn’t much left to discuss. Attend your hearing or trial and attempt to win on this issue is what you are setting yourself up for. Nothing wrong with that. However, what I would recommend against is doing so when you do not have a great chance of winning in front of a judge. You and your attorney may have overestimated the evidence that you have available to you. Your circumstances may not be conducive to you winning in court. Sometimes you may need to hear that from someone other than your attorney to understand what the stakes are and whether it is worth your while to risk a courtroom venture. 

When you hear from a mediator, someone who is completely independent, that you are attempting to win an unwinnable war it should give you some pause when it comes to the proceeding. That doesn’t mean that you should abandon your principles or give up. You can disagree in good faith with a mediator and decide to move forward to a trial on any issue in your child custody or divorce case. However, to do so without seriously considering the impressions and positions of your mediator would be a mistake. Mediation is your last and best chance to avoid the uncertainty of a family law trial. 

This is all to say that you must consider the full range of circumstances and potential outcomes before signing up for a trip to court. You can be fully engaged in your case and a strong supporter of your child without necessarily jumping headfirst into a courtroom battle that you can’t win or at least have little chance of success. You are not duty-bound or anything like that to defend an unwinnable position in court. Rather, you may be better off taking the settlement offer being made in mediation and moving on to the next issue. A worst-case scenario would be to not accept the settlement offer being made and then receive an even less favorable decision from a judge. Essentially, you would have paid money to get a worse result. Talk about adding insult to injury. 

The bottom line here is that you need to be able to distinguish between what makes you hardheaded and what makes you a hard negotiator. Being a person of principles and values does not mean that you must stick by arguments and positions that are unfavorable in the courtroom. Many people believe that they are giving up on their children or not doing what is best for them by settling out of court rather than taking an issue to trial. However, some issues just cannot be won based on circumstances beyond your control. 

A mediator can help you to see this. He or she will not be there to give you specific advice on your case, but they can provide you with context and information based on their experiences. The mediator may be him or herself a former judge and therefore they may be capable of providing you with first-hand experience of what they did in court insert similar circumstances to what you are facing. Do not disregard information even if it is not favorable to you or if it means backing down an important position. Rather, you can take their positions and consideration and work with your attorney to determine what steps to take. 

Another important piece of this puzzle is that you can settle your case-specific issues and proceed to a trial or hearing on others. A mediated settlement agreement can settle the entirety of your case, or it can settle only a few portions here and there. It is not out of the ordinary for a family to settle most issues and they only take their case to hear your trial on the few that they could not negotiate their way through. What I am not saying is to ignore the reality of your case and be hardheaded when it comes to issues. Accepting that there are circumstances that you cannot necessarily control is not giving up or selling your children short. 

For others, it is accepting that while you may have negotiated as hard as you could there is a difference between being a hard negotiator and simply being hardheaded. You may be better off accepting a temporary defeat on a certain issue and then biding your time until later. Think about it in terms of a strategic retreat at this moment to fight a battle you can win in the future. You will have the ability to come back and modify any orders agreed to at this moment use down the line. This is when the circumstances in your life may be more favorable Q accomplishing whatever you wanted to in the initial child custody or divorce case. 

As with anything in the world of Texas family law, this is an incredibly fact-specific circumstance. I’m trying my best to give you a general overview when it comes to subjects like these periods of course I don’t know anything about your specific scenario or the circumstances involving you and your kids. With that said, it is wise to take as much advice as you can, understand what is best for your children and decide from there. Sometimes if he removes what you want in your ego from the circumstances you can see that what is best for your children may not be exactly what you want or what makes you feel good at the moment. This can be a hard lesson to learn but in the world of Texas family law, it is one that you and your children will benefit from immensely.

Can you be ordered to pay child support as the primary conservator? 

Your child’s best interest is the primary consideration in determining who pays child support to what extent. In Texas, a court can order a joint managing conservator to pay child support to a Co-parent. There is nothing that bars a judge from ordering that a primary conservator pays the possessory conservator child support. Many people assume that if they are awarded the exclusive right to determine the primary residence of their child they are out of the woods when it comes to having to pay child support. However, some circumstances could lead a family court judge to order you to pay child support even if you have primary custody of your child. Let’s run through a hypothetical situation that I think would match up well with our circumstances and help you to understand just how you could eventually be ordered to pay child support after your divorce or child custody case.

Let’s assume that you worked a job where you had to work weekends. Your weeks were wide open, and you were able to care for your child during these times period your husband cared for your child on the weekends. Both you and your husband were involved in the life of your child during your marriage. After a trial, the judge determined that you were better suited to act as the parent who had the exclusive right to determine the primary residence of your child. Conversely, the judge awarded your spouse possession of your child on the first, 3rd, and 5th weekends of each month with two weeks in the summer and alternating holidays with you. You are Co-parent was awarded a standard possession order. This is a typical scenario that plays out in family law cases all the time.

However, let’s also note that you were ordered to pay $1000 per month in child support to your ex-husband and to pay for your child’s health insurance. As a part of the divorce proceedings, the family house was to be sold and the proceeds from the sale of the house will go towards your credit card debt and the remainder to be slipped between the two of you. Your ex-husband would take 60% of the sale proceeds from the home that were remaining, and you would take home 40%. How could this be the case that you may end up being ordered to pay child support even though you also have the right to determine the primary residence of your children?

If you have earned consistently more income than your husband throughout your marriage, then this would be the first factor I would look to. An additional factor that is of great importance would be if you’re Co-parent could submit evidence to a judge showing that their income was less than their monthly expenses. If your spouse is trying to better themselves through going to school to earn more money that could show a great deal of industriousness on their part. If the judge wants your child to have a similar lifestyle both with you and with your co-parent, then you may be ordered to pay child support based on these circumstances.

What should this tell you as you begin your divorce or child custody case? The first is that you need to be mindful of the totality of the circumstances involved in your case. You cannot simply assume that because you have been named primary conservator there is no way that you could also not be ordered to pay child support. If your circumstances look like the hypothetical situation, I just laid out to you then your chances of being able to retain primary custody of every child but also having to pay child support may be greater than you think. As with anything else, having the experience of a fair law attorney by your side to help you through these issues is of great importance both for you and your child.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of divorce for a child custody case.